|How you give evidence is every bit as important as what you say|
Giving evidence can be a daunting experience for many people and even those who are used to public speaking can find the formality of a courtroom off-putting. In this post, I hope to give you a better idea of what will happen when you go into court and how you can maximise the impact of your evidence.
Whether you are a witness for the defence or prosecution the process of giving evidence is the same. Just remember that unless you are the defendant you must wait outside the courtroom before you give your evidence unless the court has agreed you can enter the room sooner.
Being sworn in
First, you will be called into the courtroom by a member of the court staff who will direct you to the witness box. You will be asked whether you have any religious beliefs. If you do then you will be handed the appropriate religious book along with an oath for you to read. If you are not religious then you will be asked to affirm.
Whether you swear on a religious book or affirm you are promising to tell the truth. Lying in the witness box after you have taken the oath is a crime called perjury. A conviction for perjury will usually result in a prison sentence.
Once you are sworn in, the solicitor who called you to give evidence will ask you a number of simple questions to help you get settled in. Questioning will usually begin with, “please give the court your full name” and may continue with questions about your age, the area where you live and your employment. We ask these basic and simple questions to give you a chance to get used to answering questions in the courtroom and you may find that the solicitor or judge asks you to keep your voice up, speak slower and so on. After a few settling in questions, the lawyer will move on to deal with the reason you are at court.
Examination in chief
The solicitor who calls you to give evidence will take you through the story that you have come to the court to tell. Usually, you will have given a witness statement to the police or a defence solicitor. The solicitor questioning you in court will use that statement as a basis for the questions he or she asks you.
When you are being questioned by your own side, the solicitor is only allowed to ask you non-leading questions. That means questions that do not lead you to give a particular answer. You can expect lots of questions beginning with how, what, who, where, why and when as these types of questions are rarely leading.
You must always listen to the question you are being asked and answer only that question as succinctly as possible. So if you are asked, “what time did you arrive at the party?” Your answer should be the time you arrived the party, many witnesses feel the need to add unnecessary detail, e.g. “Well we were going to get there for 7 but we were late so we ended up getting there at 8 and when we got there I saw my friend Dan and we had a drink and… etc etc”.
It is very easy to go off on a tangent when somebody is asking you who, what, why, when, where or how questions but there may be things that your advocate wants you to tell the court and things he does not want the court to hear, for example, something you have to say may be inadmissible as evidence or both parties may have agreed not to mention a particular fact. This is why you should only answer the question you are being asked.
After you have given your account to the solicitor who called you there will be a number of questions from the other solicitors in the case. If you are giving evidence for the defence, then you will be asked questions by the prosecutor and may be asked some by any co-defendants as well.
In cross-examination, the solicitor is allowed to phrase questions however he or she likes – you may find that the “questions” are really just statements with “do you agree?” stuck on the end.
The questions you should expect will vary depending on the evidence you are giving. If you are an eyewitness to an event, then a solicitor may try to undermine your account by implying that your view was not as good as you claim or that you missed some important part of the incident. He or she may also try to highlight any internal inconsistencies in your account, for example, people often underestimate times so you might think something has taken one hour but an investigation of the times you arrive at a place and leave could reveal your timings to be inaccurate or unlikely.
Where you are giving evidence of an unremarkable event, for example, John claims his drink has been laced with vodka and you are giving evidence that John only drank two pints of weak beer a prosecutor will suggest that there is no reason for you to remember what your friend drank on a particular night some time ago. The implication being that you must be lying. So, if something sticks out in your memory be ready to say why it is so memorable.
An effective advocate will seek to put a series of propositions to you each of which seem innocent enough but at the end she will put a proposition that you do not want to agree with, but cannot easily dispute given all your previous answers – lawyers call this leading a witness up the garden path. For example, in a case where you have pleaded guilty to drink driving and are arguing that you should not be disqualified as somebody else laced your beer with vodka it is necessary for the defence to prove that you did not realise you had been affected by alcohol, so a prosecutor might put questions like this:
Q. How old are you?
Q. You were drinking beer that night weren’t you?
Q. This wasn’t the first alcoholic drink in your life was it?
Q. You have been drunk in your 36 years of life haven’t you?
Q. You know what it feels like when alcohol affects you don’t you?
Q. So, on this occasion when you say a large quantity of vodka was added to your beer without your knowledge you must have recognized the signs of intoxication mustn’t you?
This is a very simplistic cross-examination but it should serve to give you an idea that even when a question seems irrelevant it may be leading to something more important.
Incidentally, there are all sorts of answers a witness might give in response to that final question, but many witnesses find themselves reaching that final question quite unexpectedly and become flustered, which renders their answer less than convincing. We will talk more about that later.
After the other side has had their turn with you, your own lawyer has the opportunity to ask further questions that arise from those asked in cross-examination. We cannot anticipate everything an opponent will throw at us; however, in most cases your solicitor should have anticipated the majority of the cross-examination and taken steps to undermine it when he first questioned you – if done correctly there should be no need for you to be re-examined.
In theory, there is a stage at the end of the advocates’ questions where the judge can ask any question he or she has; however, in practice most judges will ask their questions as they think them up while the advocates are questioning you.
If the judge does ask you a question, it should be something to help her clarify your evidence – the judge should not ask attacking questions.
Once all the questions have been asked, the court will release you.
At this point, you are free to leave the building or stay and watch the rest of the case.
Achieving best evidence
Now that we’ve dealt with the procedure we will address the question of how you can present yourself to give the maximum effect to your words.
We won’t drone on about fashion too much beyond saying that the dress code for court is smart.
Before you head to court, look at yourself in the mirror and ask whether you’d believe anything the person looking back at you said. Would you buy a TV or a car from that person? If the answer is “no” then you should probably get changed.
A smart appearance gives a sense of authority, respectability and believability from the start. If you look like a stereotypical criminal, then expect the court to see you as one!
Being well dressed also gives people a feeling of confidence in themselves that carries over into your evidence.
How to answer questions
Ummm, er… I think it was kinda like this – be direct
Consider the following two transcripts of evidence:
Q. How do you know Mr Smith?
A. Well erm we were very close. I suppose he was probably like a big brother to me.
Q. What time did Mr Smith leave the pub?
A. I’d guess it was probably about midnight… er yes just about midnight?
Q. How do you know Mr Smith?
A. We are good friends, very close. He is like a big brother to me.
Q. What time did Mr Smith leave the pub?
A. Just after midnight.
There’s not much between them really except that in the second example the witness is more direct. Two psychological experiments (O’Barr and Conley 1976; Erickson et al 1978) showed that when confronted with the direct answers jurors found that witness more believable.
A linguist called Lakoff, in 1975, provided a list of characteristics that were later used by O’Barr and Conley to test how use of language affected the opinion of a jury. Some of the characteristics she highlighted as bad form were:
1. Frequently using hedging statements such as “I think”, “it seems like”, “perhaps” and so on;
2. Phrasing a statement as a question, for example, “I had one… maybe one and a half pints?” When you ask a question, it’s normal for your voice to rise at the end of the sentence whereas when you make a statement your voice remains flat. A rising intonation at the end of a statement makes it sound like a question and affects the weight placed on it by a jury;
3. Repetition – if several questions have the same answer then repeat yourself, but that’s not what we mean here. By repetition we are talking about the kind of repetition that makes you sound like you are trying to convince yourself, e.g. Q. “What time did Mr Smith leave the pub?” A. “I’d guess it was probably about midnight… er yes just about midnight?”; and
4. Intensifiers. Lakoff considered that words designed to intensify an answer were, in her opinion, characteristics of female speech, which she judged to be less powerful than male speech. Irrespective of whether Lakoff was correct on the gender differences we have all heard people talk who sound as though they are trying to increase the importance of something – usually in respect of themselves. In the 21st century people seem to use words such as “very”, “awesome”, “amazing” frequently so perhaps this is less of a concern nowadays.
O’Barr and Conley described speech using the Lakoff phrases as “powerless” and direct speech, which omits all of the above, as “powerful”. More importantly, they found that men and women using “powerful” speech were seen as more competent, intelligent, likeable and believable.
As a witness who, presumably, wants to be seen as truthful being judged likeable, competent and intelligent is important because you are more likely to be perceived as confident and thus to be believed. In fact, a study by Wall (1965) found that jurors tended to believe confident eyewitnesses 80% of the time EVEN WHEN THE WITNESS WAS WRONG!
This section has taken a long time to make a very simple point: answer the question you are being asked and do it with as few words as possible.
While remembering to answer the question fully, bear in mind that the less words you use the more direct and powerful your speech will be and the more likely you are to be believed.